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Feb 2, 2015

By John E. Thompson

U.S. Wage and Hour Division Administrator David Weil reportedly has said that the Division is “looking very actively at” the question of whether workers should be legally entitled to “predictable scheduling.”

In recounting Weil’s statements in a recent interview, the Daily Labor Report characterized his remarks as having to do with whether an employee has an enforceable right to a predictable, stable work schedule or to some sort of advance notice of that schedule.

And the source of this “right” is … ?

According to DLR, Weil sees it as being “an open question” whether such a supposed obligation falls within the purview of the current federal Fair Labor Standards Act.

It would certainly be news to Wage and Hour Division officials of the past to learn that there is any such purported question, particularly those who have expressly said that the FLSA neither regulates work schedules nor restricts an employer’s utilization of its adult workforce in any other way, so long as the law’s minimum-wage and overtime requirements are satisfied.

Perhaps this hints at the inclusion of some such requirement(s) in connection with a coming revival of the apparently-moribund “Right to Know” initiative, the exact nature of which has always been vague and somewhat changeable since the concept (such as it is) first surfaced in 2010.

In any event, it will not be possible to evaluate any claimed legal authority for such a proposed obligation until the U.S. Department of Labor actually publishes something.

The bottom line

Of course, employers routinely choose for a host of good business reasons – including in the interests of sound employee relations – to maintain predictable schedules and to keep employees advised in advance of what their schedules are, at least where the nature of the work permits this.

But, to assert that an employer may be legally compelled to do so under the FLSA as it stands today is an entirely different and highly doubtful proposition.

Employers should stay on the alert for any such Department of Labor proposal.

This was originally published on Fisher & Phillips’ Wage and Hour Laws blog.